Stakeholder Consultation on Legal Framework of Insolvency

Stakeholder Consultation on Legal Framework of
Insolvency Laws in India with Special Reference
to Corporate Sector
Consultation Paper & Questionnaire
Organised by
School of Corporate Law
Indian Institute of Corporate Affairs
March 19, 2015
Stakeholder Consultation on Legal Framework of Insolvency Laws
in India with Special Reference to Corporate Sector
CONSULTATION PAPER
Organised by
School of Corporate Law
Indian Institute of Corporate Affairs
March 19, 2015
About IICA
The Indian Institute of Corporate Affairs (IICA) – a principal institution engaging with all
aspects of the corporate world in India, is established by and affiliated to the Ministry of
Corporate Affairs (MCA), Government of India. The IICA is committed to delivering
opportunities for research, education and advocacy while simultaneously creating a repository of
data and knowledge for policy makers, regulators as well as all other stakeholders related to the
domain of Corporate Affairs.
IICA is a holistic think tank, capacity building and service delivery institution, operating through
effective partnerships with corporate, professionals and institutions, and focusing on problem
solving through action research. IICA provides an insight into all issues relating to corporate
affairs that impact corporate functioning including legislative, policy, structural, governance,
regulation, inter disciplinary and coordination issues by keeping in view current developments
and likely future scenarios. IICA also endeavors to enable innovative solutions towards inclusive
growth and entrepreneurial excellence with a focus on ethical business management practices.
IICA, through its various Schools and Centers coupled with the steering vision of its Board of
Governors engages with experts, professionals and public servants from a range of fields
involving policy formulation, evaluation and reform.
SCHOOL OF CORPORATE LAW
School of Corporate Law (SCL) one of the five Schools at IICA has established a niche of
scholarly research in the field of corporate and related laws by corralling renowned experts in the
field, professionals and academicians. SCL provides for policy insights into government
legislation on the edifice of current epoch of rapid economic expansion and strategic knowledge
dissemination.
With the dynamic nature of corporate laws, there are many new concepts being introduced for
the betterment of corporate governance norms. This dynamism have been reflected in the
Companies Act, 2013 with the introduction of many new concepts and elaboration of the existing
rudimentary provisions necessitating a demand for an apt and sharper understanding of these
provisions. The SCL at IICA, equipped with its state-of-the-art technological aids and pool of
highly acclaimed academicians and professionals in the field of corporate laws aims at creating a
programmed ecosystem for knowledge dissemination, research and advisory consulting, policy
drafting and analysis.
ABOUT THE CONSULTATION
Hon’ble Finance Minister in his Budget Speech of 2014-15 emphasized the need of robust
bankruptcy laws so as to early detection and resolution of financial distress in enterprises and
protection of interest of stakeholders with examination of clear role of the institutions engaged in
the process of rescue and liquidation.
Pursuant to the aforesaid emphasis, a Committee
(the Bankruptcy Law Reform Committee – BLRC) had been set up under the Chairmanship of
Shri. T. K. Viswanathan, former Secy. General of Lok Sabha and former Law Secretary of the
Union to study the bankruptcy legal framework in India and submit a report thereupon. While the
School of Corporate Law began its work on Bankruptcy Laws in the month of January 2014, in
view of a specific Committee being formed by the Government of India to examine this issue, it
was decided that two stakeholders consultations would be held at the IICA and the results of the
same may be compiled as a report and submitted to the T.K. Vishwanathan Committee for further
use.
Since the T.K. Vishwanathan Committee submitted its interim report in February 2015 (Report
could be accessed from http://finmin.nic.in/reports/Interim_Report_BLRC.pdf) and it “expected
that this Interim Report will serve as a catalyst for a wider and more extensive consultation for
stakeholders”, it was decided to have stakeholder consultation on some important interim
findings made by BLRC. As one of the focus areas of BLRC was the MSME Sector, School of
Corporate Law organized one stakeholder consultation focused upon the MSME Sector on
February
27,
2015
(Consultation
http://iica.in/images/Consultation%20Paper.pdf).
Further,
Paper
in
available
line
with
the
at
interim
findings/observations of BLRC this stakeholder consultation is proposed to discuss the issues
relating to the corporate insolvency.
OBJECTIVES
The objective of the present stakeholder’s consultation is to provide a platform to the
stakeholders to examine and provide their views on the interim observations/suggestions put up
by BLRC (refer to the executive summary of the BLRC report) in its report. The stakeholders
may be financial institutions, creditors, shareholders, employees, government officials, corporate
executives, academia and researchers.
IMPORTANT DATE
Date of Consultation – March 19, 2015
Time : 11.00 am
VENUE:
IICA Campus
Plot No. 6-8, Sector 5 (adjacent to Rockland Hospital)
IMT Manesar, Gurgaon – Haryana - 122050
There is no Registration Fee for the Consultation; however, prior registration is a must.
Please address your queries to:
School of Corporate Law, Indian Institute of Corporate Affairs (IICA)
Plot Nos. 6-8, Sector – 5, IMT, Manesar, District: Gurgaon, Haryana – 122050
0124-2640084 – scl@iica.in
OR
Program Coordinator
Zeenat Masoodi
Sr. Consultant
0124-2640101/ 9999135785
zeenat.masoodi@iica.in
Program Director
Dr Vijay Kumar Singh
Associate Professor & Head
0124-2640099 / 9891500707
vijay.singh@iica.in
ISSUES FOR CONSULTATION: QUESTIONNAIRE
(Refer Summary of Issues and Recommendations of BLRC Report
para 204 (page 14-31)
INDIVIDUAL ENFORCEMENT VERSUS COLLECTIVE ENFORCEMENT
1) Under the Companies Act, 2013, (‘Act’) a single secured creditor may apply to the NCLT to
have the debtor company declared as sick subject to the condition that at least 50% of the
value of outstanding debt, on being demanded by secured creditors, is not paid, secured or
compounded by the company. [Section 253 (1) ]
The T.K. Vishwanathan Committee (‘Committee’) in its interim report is of the opinion that
the debtor company has likely already reached a stage where it may not be able to repay its
outstanding debts and the process of rescue would be cumbersome. Therefore it has
recommended that the Act be amended in order to allow the filing of an application with the
NCLT by a single secured creditor to recover his debts exceeding a prescribed value, if the
company fails to pay the same within 30 days of the demand. The Committee has also
observed that the provision under Section 271(2)(a) of the Act, by virtue of which a creditor
is permitted to file a winding up petition on the company’s failure to repay a single
undisputed debt exceeding Rs. One Lakh, is in glaring contrast to the position of a single
secured creditor under Section 253 (1).
The Committee is also of the opinion that the chances of abusive filings for declaration of
company’s sickness by individual creditors are minimal as such creditors would prefer
individual enforcement over a collective rescue process.
Ques: As a stakeholder, would you agree with the Committee’s recommendation that a single
secured creditor should be allowed to file an application before the NCLT for having a
debtor company declared sick in case of the latter’s inability to repay a certain prescribed
amount? Do you believe that this recommendation, if amended and incorporated in the
Act, is likely to be abused by the individual secured creditors? Please state why or why
not.
ENFORCEMENT AT THE INSTANCE OF DEBTOR COMPANY
2) Under Section 253(4) of the Act, a debtor company may file an application with the NCLT to
have itself declared as sick on the same grounds as the secured creditors. The Committee is
of the opinion that the said section be amended to allow the filing of the application by the
company on the ground of its inability or likely inability to pay any undisputed debt of a
prescribed value to any creditor, whether secured or unsecured. The company should
therefore be able to initiate rescue proceedings even before it has defaulted on its debt. The
Committee further refers to Section 261(2)(c) of the Act under which a scheme for revival
and rehabilitation may provide for the takeover of a sick company by a solvent company,
when the scheme is placed before creditors for approval, they may decide to replace the
management of the sick company. The Committee therefore is of the opinion that in such a
scenario, the debtor company is not likely to abuse the process by initiating the rescue
proceedings too early.
Ques: Would you agree with the Committee’s recommendation and views? Please state why or
why not?
ENFORCEMENT AT THE INSTANCE OF UNSECURED CREDITORS OF THE
COMPANY
3) Section 253 of the Act permits only secured creditors to file an application with the NCLT.
The Committee is of the opinion that the inability of the unsecured creditors initiate rescue
proceedings reduces their incentive to provide credit since they are exposed to higher risks.
Also certain companies may only have unsecured creditors. In order to prevent abuse, the
Committee has suggested that the eligibility criteria for making such application should have
a value related threshold. The Committee therefore recommends that the said Section be
amended to allow the initiation of rescue proceedings by unsecured creditors representing
25% of the value of the company’s outstanding debt to unsecured creditors, if the company
fails to pay the same within 30 days of the demand or secure or compound it.
Ques: Would you agree with the Committee’s recommendation and views? Please state why or
why not?
REDUCED TIMELINES
4) Under Section 253(7) the NCLT must determine whether or not the company is sick within
60 days of filing of application by the creditors or the debtor company. The viability of the
company is assessed only after the company has been declared sick. The order of the NCLT
may be appealed against resulting in further delay. The Committee therefore recommends
that Sections 253 to 258 of the Act be amended to reduce timelines to determine the
company’s viability. It recommends that appointment of an interim administrator within 7
days of the filing of application with the NCLT for determination of Debtor Company’s
sickness. The scope of the duties of interim administrator will be limited to convening of a
meeting of the creditors and submission of report to the NCLT on the viability of the debtor
company. A decision of the committee of creditors on whether the company should be
rescued or liquidated should be supported by 75 % secured creditors by value (or 75% of all
the creditors by value, if there is no secured debt in the company). This would give the
creditors greater say in the matter at an early stage and result in reduced time to come to the
final conclusion.
Ques: Would you agree with the Committee’s recommendation and views? Please state why or
why not?
PRINCIPLES OF ENFORCEMENT THROUGH MORATORIUM
5) The NCLT has the power to grant a moratorium on enforcement proceedings relating to
winding up etc, on an application either by the creditors or the company. The moratorium is
for a fixed period of 120 days and may be granted with a view to prevent sale of the debtor
company’s assets and avoid multiple legal actions for purpose of protecting the creditors.
[Section 253(2) and (3)]
The Committee is of the opinion that this power of NCLT suffers from several defects such
as the wide discretion to grant moratorium, no provision to lift moratorium when once
granted, no consideration of creditors’ interest.
The Committee therefore recommends that the Act be amended and the power of NLCT to
grant, refuse or lift moratorium must be guided by a list of grounds such as :

moratorium may ordinarily be granted if the business seems prima facie viable (and
needs to be protected from piecemeal sale or liquidation)

moratorium may not be granted if 75% of the secured creditors by value (or 75% of all
the creditors by value where there is no secured debt in the company) dissent to the grant
of a moratorium

refusal to grant moratorium if there is any evidence of fraud, diversion of funds, etc

discretion of NCLT to terminate or modify moratorium or impose terms on the
application, on grounds such as
(a) if the creditor applying to the NCLT for leave to take debt enforcement action is able
to prove that the grant of leave is unlikely to hinder the purpose of the rescue
proceedings from being achieved
(b) on the application of the creditor applying for the same if the debtor company has not
‘adequately protected’ the interests of the such creditor
(c) if the creditor is able to show that the property in question is not necessary for the
effective reorganization of the debtor company

While exercising its discretion on whether to grant leave to a creditor to take
enforcement action, the NCLT may balance the legitimate interests of such creditor
against the legitimate interests of other creditors of the debtor company. If significant
loss (financial or non-financial, direct or indirect) will be caused to the creditor applying
for leave to take enforcement action if such leave is refused, the NCLT may normally
grant leave. However, if the loss caused to the other creditors in granting such leave is
greater, then the NCLT may not grant leave. In conducting the balancing exercise, the
NCLT may consider factors such as the financial position of the debtor company, its
ability to pay arrears due to the creditor as well as continuing payments, the proposals
put forth by the interim administrator or the company administrator, the time for which
the rescue proceedings has already been in place and the time for which such
proceedings will continue, the effect on the rescue proceedings if the NCLT were to
grant leave, the effect of refusal of leave on the creditor applying for leave, the end result
to be achieved by the rescue proceeding, the prospects of such a result being achieved. In
considering the various factors listed above, if loss to the creditor applying for leave is
certain if leave is refused, but loss to the others only a remote possibility if leave is
granted, then the NCLT may grant such leave to the creditor.

Moratorium shall automatically stand revoked if the NCLT makes determination that the
company cannot be rescued.
The Committee also believes that the threat of a permanent takeover by creditors in the
recovery process will prevent abuse of such recommendations by the debtor company.
Ques: Would you agree with the Committee’s recommendation and views? Please state why or
why not?
APPOINTMENT OF ADMINISTRATOR
6) Under the Act, the NCLT has the power to appoint an interim or company administrator for
the debtor company. The Committee is of the opinion that 75% of the secured creditors in
value (or 75% of all creditors by value, if there is no secured debt in the company) should be
able to appoint a company administrator directly after a company has been declared sick.
Appointment must be made within 15 days of order declaring sickness and the terms and
conditions of his appointment will be subject to post facto confirmation by the NCLT i.e.
after the appointment is made. The NCLT may confirm such appointment in the absence of a
manifest violation of the prescribed terms and conditions or a challenge by the company or
the other creditors. The company and/or other creditors should be permitted to petition the
NCLT for the removal or replacement of the company administrator. The NCLT should be
able to impose sanctions/costs/damages on a petitioner if it finds that a petition challenging
such appointment has been filed to abuse the process of law and dispose of any application
for removal or replacement of the company administrator within thirty days.
The Committee also believes that the possibility of abuse can be minimized by incorporating
safeguards and allowing the right to appoint the administrator to a large majority of secured
creditors.
Ques: Would you agree with the Committee’s recommendation and views? Please state why or
why not?
TAKING OVER MANAGEMENT OF COMPANY ROLE OF ADMINISTRATOR VISÀ-VIS NCLT
7) The Act gives the power to the company administrator to take over the management of a sick
company only if the NCLT so directs. The Committee believes that here also, too much
discretion has been given to the NCLT without providing any guidelines. It recommends that
the Act be amended and guideline be included for the NCLT to consider while appointing the
administrator to take over the management of a sick company.
The guidelines should include:
 NCLT may direct the company administrator to take over the management or assets of the
debtor company suo motu (on its own motion) or on an application made by 75% of the
secured creditors in value (or 75% of all the creditors by value if there is no secured debt in
the company). Such an application may be made within seven days of confirmation of the
administrator’s appointment.
 NCLT shall decide on such application of the secured creditors within thirty days. The suo
motu order may be made during any stage of the rescue proceedings.
 NCLT give a hearing to the debtor company before such an order is passed
 List of grounds to guide the NCLT’s discretion in determining whether such takeover should
be ordered or not, include:
a) Fraud or impropriety
b) Mismanagement of the affairs of the company
c) The debtor company has defaulted in meeting its undisputed payment or repayment
obligations to any creditor who is eligible to make a reference to the NCLT under
Chapter XIX despite having the capacity to honour them, or has diverted the funds for
other purposes etc
d) Unauthorized transfers of the debtor company’s cash or assets during the course of rescue
proceedings or anytime before the commencement of the proceedings if the NCLT is
satisfied that such transfers were carried out for the purpose of putting such cash or assets
beyond the reach of the creditors who have a claim on such cash or assets
The NCLT order for takeover of the management may also provide for the following :
 Empower the administrator to appoint or dismiss managerial personnel (subject to applicable
labour laws) including directors as part of taking over the management
 In cases where the financial distress of the company is not attributable to managerial actions
and where the presence of such management (or senior employees) is in the opinion of the
administrator crucial for a successful turnaround of the business, the administrator should be
allowed to enter into agreements (on behalf of the company) with such managerial personnel
that incentivise them to stay on for turning the company around
 Require the other directors or employees to extend all assistance and co-operation to the
company administrator and not carry out any act that materially affects the business or
property of the company without the prior permission of the administrator.
 Such an order may also specify the powers of shareholders after the administrator takes over
the management and define the rights of the administrator vis-à-vis the shareholders.
Ques: Would you agree with the Committee’s recommendation and views? Please state why or
why not?
8) The Committee is of the opinion that specific powers and functions should be granted to the
company administrator. These should include:
General powers in relation to takeover of management (which will include takeover of the
company’s assets) after administrator has been directed by the NCLT to take over the
management of the company:
a) do anything necessary or expedient for the management of the affairs, business and
property of the company
b) enforce, modify or terminate any contract or agreement entered into by the company
depending on whether such contract is beneficial or detrimental for effectively rescuing
the company
c) take possession of and collect the property of the company
d) appoint a lawyer or accountant or other professionally qualified person or expert to assist
him in the performance of his functions
e) bring or defend any action or other legal proceedings in the name and on behalf of the
company
f) power to raise or borrow money and grant security therefor over the property of the
company as part of a scheme of revival, subject to the terms of the scheme;
g) use the company’s seal
h) do all acts and to execute in the name and on behalf of the company any deed, receipt or
other document
i) effect and maintain insurances in respect of the business and property of the company
j) do all such things as may be necessary for the realisation of the company’s property
k) carry on the company’s business;
l) make any payment which is necessary or incidental to the performance of his functions
m) do all things incidental to the exercise of the above powers.
General powers in relation to takeover of assets (the management need not be displaced in
cases where an administrator is directed to take over a particular asset or assets):
a) take possession of such assets
a) do anything necessary or expedient for the management of such assets
b) enforce, modify or terminate any contract or agreement entered into by the company in
relation to such assets depending on whether such contract is beneficial or detrimental for
the protection of such assets
c) appoint a lawyer or accountant or other professionally qualified person or expert to assist
him in the performance of his functions in relation to such assets
d) bring or defend any action or other legal proceedings in the name and on behalf of the
company in relation to such assets
e) do all acts and to execute in the name and on behalf of the company any deed, receipt or
other document in relation to such assets
f) effect and maintain insurances in respect of such assets
g) make any payment which is necessary or incidental to the performance of his functions in
relation to such assets
h) do all things incidental to the exercise of the above powers
Ques: Would you agree with the Committee’s recommendation and views? Please state why or
why not?
PRINCIPLES FOR SANCTION OF SCHEME OF REVIVAL
9) The Act provides that in order for the scheme of revival and rehabilitation of a sick company
to be sanctioned by NCLT, such scheme must be approved by secured creditors representing
75% in value of the debts owed by the company to such creditors and unsecured creditors
representing 25% in value of the amount of debt owed to such creditors.
The Committee believes that this needs to be amended to
(a) provide for a predictable and fair mechanism for sanctioning of a scheme of revival,
(b) avoid hold-outs by debtor companies through their related parties and
(c) prevent diversion of cash flow generated by the business after approval of a scheme of
revival.
The Committee therefore recommends that the Act be amended to provide for the following
principles to be applicable at the time of sanctioning a scheme of revival:
(i) the creditors within the same class should be treated equally
(ii) dissenting creditors should get as much in scheme as they would in liquidation
(iii) consent of creditors who are not affected by a scheme should not be required (for
instance, secured creditors who have realised their security interests outside the rescue
proceedings)
(iv) related parties should be excluded from the unsecured creditors entitled to vote on a
scheme.
Identification of ‘creditors who are unaffected by a scheme’ and ‘unsecured creditors who are
related parties of the company’ should also be a specified function of the company administrator.
The process of identification should be completed before the scheme is put to vote.
Ques: Would you agree with the Committee’s recommendation and views? Please state why or
why not?
RAISING FINANCE FOR REVIVAL
10) The Committee has observed that in order for a company in financial distress to be able to
revive, it needs access to fresh external finance. But given that the company is sick and in the
rescue process, it is very difficult to find finance. Lenders do not lend to such companies for
the fear that the money will be utilized for repayment of the outstanding debts on which the
company has defaulted.
The Committee suggests that the Act be amended to include ‘raising secured and unsecured
loans from any creditor (whether existing or external) as part of a scheme of revival’, drawn
up by the company administrator. The Scheme may also include provisions for ‘super-
priority’ for creditors who provide such finance i.e. the rescue finance providers will rank
ahead of all existing creditors subject to such safeguards for the existing creditors as may be
provided in the scheme.
Ques: Would you agree with the Committee’s recommendation and views? Please state why
or why not?
11) The Act permits secured creditors representing 75% of the value of the debt to cause the
abatement of rescue proceedings if such secured creditors initiate the debt enforcement
process under the SARFAESI Act. This was meant as an escape route initially provided by
an amendment to SICA, owing to the widespread opinion that SICA was dysfunctional and
not being used for legitimate rescue purposes. But the same carve-outs for secured creditors
have been reproduced in the corporate rescue provisions of the Companies Act 2013.
However, in stark contrast to SICA which has proved to be dysfunctional in practice, the
SARFAESI Act has been fairly successful in enabling secured creditors to enforce their debt
against defaulting debtors. Moreover, as discussed above, a scheme of revival needs to be
approved by 75% of the secured creditors for it to be approved. If 75% of secured creditors
intend to initiate debt recovery proceedings, it is unlikely that they will subsequently approve
a rehabilitation plan for the debtor company. The Committee therefore is of the opinion that
until there is some evidence to suggest that the rescue proceedings under the Companies Act
2013 cannot function effectively (i.e., save viable businesses from piece-meal sale or
liquidation) in the face of the secured creditors’ enforcement rights under the SARFAESI
Act, such rights should not be disturbed at this stage.
Ques: Would you agree with the Committee’s recommendation and views? Please state why or
why not?
SCHEME OF DEBT RESTRUCTURING
12) The Committee is of the opinion that the schemes of arrangement for debt restructuring
under the old Companies Act, 1956, was not very popular, except in the case of mergers and
acquisitions). The Committee is of the opinion that schemes of arrangement can become a
very effective tool for debt restructuring, acknowledging however that such restructurings
can also be achieved less formally (and often less expensively) through a workout outside the
court. Given that the proceedings for schemes of arrangement can be initiated without any
proof of default or insolvency, they can facilitate early intervention and finality.
Schemes of arrangement can also facilitate the use of hybrid-rescue mechanisms like ‘prepackaged rescues’. Pre-packaged rescue is a practice evolved in the UK and the US by which the
debtor company and its creditors conclude an agreement for the sale of the company’s business
prior to the initiation of formal insolvency proceedings. The actual sale is then executed on the
date of commencement of the proceedings/date of appointment of insolvency practitioner, or
shortly thereafter (and the proceeds distributed among the stakeholders in the order of priority).
Until the Indian market for insolvency practitioners becomes sufficiently developed and
sophisticated, it may not be advisable to allow such sales without the involvement of the court or
the NCLT. However, such sales could be allowed as part of a NCLT supervised scheme of
arrangement. Subject to prior approval of the different classes of creditors, shareholders and
relevant government authorities, such pre-packed schemes may be approved by the NCLT within
thirty days of filing (without requiring any separate meetings or hearings) as long as the scheme
satisfies the basic requirements as may be prescribed. However, pre-packaged rescues in the UK
have also been criticised for failing to take into account the interests of all the stakeholders
(specially the unsecured creditors). In view thereof, before any such measure is introduced in
India, separate rules will have to be developed to operationalise such pre-packed schemes to
protect the interests of all the stakeholders.
Ques: Would you agree with the Committee’s recommendation and views? Please state why or
why not? Should pre-packaged schemes of rescue (with minimal involvement of the
NCLT and no separate requirements for creditor meetings) be allowed as part of a
scheme of debt restructuring under Section 230 of CA 2013?
Any other issue raised by the participants:
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